TaxTMI 
TaxTMI 
2015 (12) TMI 587
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.... of Mustard Oil Cake (Khali) to be consigned to Hong Kong via South Africa. That two containers with the goods, duly inspected by the Customs Authorities at Jogbani, were bottle sealed by Nepalese Customs and forwarded to Kolkata for shipment. That CTD (Custom Transit Declaration) was filed by the appellant on the basis of documents provided by the Nepalese Exporter through its agent in India.That the containers were intercepted by DRI in the docks at Kolkata and upon inspection by DRI, in the presence of representative of the appellant, one of the two bottle seals was found to be tampered but the second seal of the other container was found to tally with the declared seal number mentioned in the covering document. That on examination by DRI, the containers were found to contain 19.65 MT of Red Sanders wood. That after necessary investigation appellant was alleged to have violated Regulation 13 (a), 13 (b) and 13 (c) of the CHALR 2004 (comparable to Regulation 11 (a) 11 (b), 11 (c) & 11 (n) of the CBLR 2013). That after conducting necessary inquiry proceedings CHA License of the appellant was revoked by adjudicating authority under order dated 27/2/15 read with a corrigendum dt. 13....
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....the Revenue argued that it is evident from the statement dated 30/11/12 that 7/5/2013 of Shri Chandan Chatterjee, partner of M/s. Shubham Enterprises, that: (i) he was engaged as CHA for clearance of export of M/s. Osia Enterprises-Nepal by Sri Sanjoy Singh of M/s. Global Marine Agency-Kolkata. (ii) Smt. Bimla Parak is the proprietor of M/s. Osia Enterprises-Nepal; (iii) he or any of his authorized person never visited M/s. Osia Enterprises-Nepal and also no one from M/s. Osia Enterprises-Nepal ever visited their office or even talked to their office over phone; (iv) he received authorization by e-mail but never submitted to the office; (v) over phone and e-mail, he was in regular touch with Sri Sanjoy Singh, but met him; (vi) Sri Amreek Singh, claimed to be brother of Sri Sanjoy Singh used to visit his office to deliver documents etc.; (vii) he used to get remunerations in cash and issue bills to M/s. Global Marine Agency on spot; (viii) he did not obtain KYC of Sri Sanjoy Singh & M/s. Global Marine agency prior to 01.12.2012, though the export started from May, 2012; (ix) he neither verified correctness of the PAN of Sri Sa....
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....he appellant to check up with the exporter or the freight forwarder whether Shri Sanjoy Singh is their assigned representatives for carrying out the transit of their containers from LCS Jogbani to Dock Kolkata. Regulation 13 (o) of CHALR 2004 clearly provides that CHA, interalia, should verify the identity of his client and functions of his client at the declared address. Shri Amreek Singh and Shri Sanjoy Singh conducted business with the CHA as an agent of M/s. Osia Enterprises and freight forwarder and thus fell into the footsteps of the exporter. No independent efforts were made by the CHA to verify whether the persons dealing with him on behalf of the exporter/freight forwarders are genuine. No confirmation over phone/Mobile was made by the appellant when documents were handed over to the CHA. It is also observed that Shri Dilip Kumar Sharma, Jetty Sircar of the appellant was deputed to attend to the examination of the container when DRI was carrying out the investigation. Para 2 of the statement dated 29/11/2012 of Shri Dilip Kr. Sharma where he stated as follows: "In response to a specific query of DRI officer I want to say that I am looking after the export clearance work ....
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.... active or passive facilitation by the appellant in that sense. Undoubtedly, the provision of the G cards to non-employees itself violated the CHA Regulations. This is an admitted fact, but it is not the Revenue's argument (nor is it the reasoning adopted by the Commissioner or the CESTAT) that this violation in itself is sufficiently grave so as to justify the extreme measure of revocation. Not any and every infraction of the CHA Regulations, either under Regulation 13 ("Obligations of CHA") or elsewhere, leads to the revocation of license; rather, in line with a proportionality analysis, only grave and serious violations justify revocation. In other cases, suspension for an adequate period of time (resulting in loss of business and income) suffices, both as a punishment for the infraction and as a deterrent to future violations. For the punishment to be proportional to the violation, revocation of the license under Rule 20(1) can only be justified in the presence of aggravating factors that allow the infraction to be labeled grave. It would be inadvisable, even if possible, to provide an exhaustive list of such aggravating factors, but a review of case law throws some light on th....
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....ved. Moreover, more than 100 blank shipping bill forms were sent to a third-party. Following these aggravating factors, the penalty of revocation was justified by the CESTAT. Similarly, in H.B. Cargo (supra), relied upon by the majority of the CESTAT, the case did not concern any ordinary infraction of the CHA Regulations, but "an act of corruption", where blank shipping bills were issued by the partner and authorized representative of the CHA for a consideration of ` 150 per shipping bill. 11. Viewing these cases, in the background of the proportionality doctrine, it becomes clear that the presence of an aggravating factor is important to justify the penalty of revocation. While matters of discipline lie with the Commissioner, whose best judgment should not second-guessed, any administrative order must demonstrate an ordering of priorities, or an appreciation of the aggravating (or mitigating) circumstances. In this case, the Commissioner and the CESTAT (majority) hold that there is no finding nor any allegation to the effect that the appellant was aware of the misuse if the said G cards, but do not give adequate, if any weight, to this crucial factor. There is no finding of a....